Scott v. Beaudet — 41 N.Y. St. Rep. 675

Majority

p. 675

Walter Scott et al., App’lts, v. Homer J. Beaudet, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 30, 1891.)

Headnote

Attachment—Affidavit—N on-eesidence.

An affidavit for an attachment which states that the defendant is a nonresident, as deponent has been informed by the defendant’s bookkeeper and verily believes, is sufficient without a statement that the informant’s affidavit cannot be obtained. The latter fact may reasonably be inferred from the business relation which the informant hears to the defendant.

Appeal from an order of the special term granting the defendant’s motion to vacate a warrant of attachment.

A. G. N. Vermilya, for app’lts; J. H. V. Arnold, for resp’t.

The attachment was vacated upon the ground that the fact of non-residence was not sufficiently proved. The plaintiff Scott states in his affidavit as follows:

“ That the defendant is a non-resident of this state (as deponent ¡has been informed by Mr. Hutchinson, defendant’s bookkeeper, •and verily believes) and resides in the state of ¡New Jersey.”

The rule undoubtedly is, that where facts are stated on informa~tion the affidavit should show its sources, that the affiant believes such information, and that the informants are absent, or that their depositions cannot be obtained. The affidavit in the present case ■concededly complies with all these requisites expept the last It gives the name of the informant, and states that the affiant “ verily believes ” the information. But it fails in terms to state that the informant’s deposition cannot be obtained. We think, however, that the latter fact may reasonably be inferred from the "business relation which the infonnant bears to the defendant. When the affiant tells us that his informant is the defendant’s "bookkeeper, he states a fact which of itself furnishes a reasonable ground for not applying for an affidavit. The law should not .require so dangerous a formality as an application which might readily result in frustrating the plaintiff.

A person in the defendant’s employ, especally one so close to him as his bookkeeper, could scarcely be expected to make a hostile affidavit against him; that, too, for the purpose of tying up his employer’s property. The request for such an affidavit "would, in the nature of things, be communicated to the defend■ant and give him time to conceal or dispose of his property before it could be reached by attachment. If the affiant here had

p. 676

said that the reason Mr. Hutchinson’s affidavit could not be procured was because he was the defendant’s bookkeeper, and affiant, believed that he would refuse to make such an affidavit and affiant also believed that the mere request therefor would be communicated to the defendant and thus defeat the attachment, the-rule would surely have been sufficiently complied with. Yet the affiant’s belief and fears on that head would avail only because founded upon reason, namely, upon the fact stated .that the informant is the defendant’s bookkeeper; a fact fully justifying such belief and fears. How the statement of the fact carries with it the impress of such belief and fears quite as distinctly as though they had been mentioned in terms.

We think, therefore, that the affiant has given a sufficient reason for the non-production of Mr. Hutchinson’s affidavit, and that, upon the whole, Mr. Scott’s affidavit was sufficient to justify the granting of the warrant. There is no force in the further objection that the information may have related to a past period and not to the time when the attachment was granted. The affiant, speaks of the defendant’s non-residence as of the present time,, and the fair implication is that such was his information.

The order appealed from should be reversed, with costs and. the usual disbursements, and the attachment reinstated.

Yan Brunt, P. J., and Ingraham, J., concur.